How Reform and Review can Combat Misconceptions and Poor Handling of Sexual Violence
written by Katie Davies
New advice resultant from a Crown Prosecution Service (CPS) review has emerged and states that prosecutors in English and Welsh courts should discount online communications including ‘sexting’ when evaluating the suitability of court proceedings in rape cases. These recommendations were created in consultation with victim support groups in response to the sharp decrease in cases being pursued to court and the prevalence of misconceptions surrounding rape cases.
The new advice is an important development in the handling of rape cases. Online exchanges between parties simply cannot give any indication that consent was given for a specific act. The sending of intimate images, ‘sexting’ or any communications which may be deemed sexual do not act as a proxy for consent, which must be given continuously, enthusiastically and when an individual has the capacity to do so at all stages of an interaction or relationship. Furthermore, messages and exchanges between parties after a sexual assault can seem ‘normal’ upon inspection for many reasons.
Many rape survivors could feel unsafe or confused after their experience. In addition, no one can be certain of how they would respond to experiencing sexual violence. A common misconception is that everyone’s response will be fight or flight, neglecting the very common response of freeze, where the survivor seems to do perhaps nothing at all. Therefore, a lack of explicit response from an individual following an assault, be that in person or via later online communications, cannot act as evidence that the assault did not take place.
These new recommendations from the CPS are a positive step forward. However, there are many elements to the proper handling of rape cases which are important, particularly surrounding what can be used as evidence. The Crown Prosecution Service declares that robust precautions exist, which act to block the use of ‘irrelevant sexual history’ from being used as evidence and that they oppose the use of sexual history as evidence in general.
There is the argument, however, that sexual history never really should be relevant. Just because consent has been given in the past does not mean consent is given now, or ever again for that matter. The very need for ‘safeguards’ or ‘opposition’ to the use of sexual history in rape cases is disappointing.
“Just because consent has been given in
the past does not mean consent is given now,
or ever again for that matter”
Additionally, the use of such evidence — as indicators of a rape claimant’s character — can foster the misconceptions and myths surrounding rape cases. Things like sexual history or online exchanges could be used to imply that the rape claim is false, something that is true in less than 1% of cases but that can be argued is popularly believed to occur much more often. Furthermore, exchanged messages can show a previous relationship was established between parties, which may for some suggest that rape seems less likely to have occurred. The Scottish Crime and Justice survey in 2012/13 found that 83% of survivors knew the perpetrator in some capacity and so the idea of the stranger jumping from the bushes to attack is yet another over-represented portrayal of sexual violence.
Issues with the handling of sexual assault in judicial systems are not unique to the UK. The Danish government has only recently adopted ‘consent-based rape legislation’. Previously, the legislation placed much emphasis on whether the survivor physically resisted the perpetrator — whether or not there was a physical, violent struggle. For a country with such a positive reputation for forward-thinking and gender equality, this was a very problematic stance. The hugely constructive and encouraging revelation in legislation in Denmark is very welcome. However, worryingly, Denmark became just the tenth country in Europe to have in legislation that lack of consent equates to rape. Therefore, an international movement in legislation reform and myth-busting is still blatantly and urgently required.
The advice released by the CPS is heartening for the prospect of better handling of sexual violence cases in the judicial system. This is absolutely crucial to the well-being of survivors, the raising of awareness of misconceptions surrounding sexual assault and therefore also to sexual violence prevention. In giving clearer guidance to the prosecution on what should be considered when evaluating the possibility of taking a case to court and in laying out clearly what is fit, reasonable and relevant evidence in rape cases, society is given the opportunity to become a much healthier environment. It represents a very positive prospect and step forward, but one which should be taken in the full knowledge that much more has to be done before we can reach a utopia.
